Opposition Brief — Rowland v. Kentucky

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OCT 30 1995 1

IN THE OFFICE OF tnt CLERK

SUPREME COURT OF THE UNITED-STATES~-——

OCTOBER TERM, 1995

versus

COMMONWEALTH OF KENTUCKY RESPONDENT

ON PETITION FOR A WRIT OF CERTIORARI

TO THE KENTUCKY SUPREME COURT

CHRIS GORMAN

ATTORNEY GENERAL

MICHAEL L. HARNED

ASSISTANT ATTORNEY GENERAL

P. O. BOX 2000

FRANKFORT, KENTUCKY 40602-2000

(502) 573-8300

COUNSEL FOR RESPONDENT

TABLE OF CONTENTS

PAGE NO.

QUESTION PRESENTED FOR REVIEW .

OPINION BELOW .

JURISDICTION

28 U.S.C. §1257 (a)

CONSTITUTIONAL PROVISIONS INVOLVED

COUNTERSTATEMENT OF THE CASE

COUNTERSTATEMENT OF THE FACTS .

REASONS FOR DENYING THE WRIT

WHETHER THE KENTUCKY SUPREME COURT’S

DECISION FOLLOWS THE MAJORITY VIEWPOINT

THAT A WITNESS SHOULD NOT BE DISQUALIFIED

FROM TESTIFYING ON THE GROUND SHE WAS

HYPNOTIZED BEFORE TRIAL AND HER PRE-TRIAL

AND POST-TRIAL HYPNOTIC STATEMENTS WERE

THE SAME . oe eo ak eS ae ee

Chamblee v. State, 527 So.2d 173

(Ala.Cr.App. 1988) eis

People v. Romero, 745 P.2d 1003

(Colo. 1987), cert. denied

Romero v.Colorado, 485 U.S. 990,

99 L.Ed.2d 506, 108 S.Ct. 1296 (1988)

Creamer v. State, 232 Ga. 136,

205 S.E.2da 240 (1974)

State v. Pierce, 263 S.C. 23,

207 S.E.2da 414 (1974)

State v. Jorgenson, 8 Or.App. l,

492 P.2d 312 (1971)

10

12

12

13

Pearson v. State, Ind.

441 N.E.2d 468 (1982)

House v. State,

445 So.2d 815 (Miss. 1984)

State v. Varela, 112 N.M. 538,

817 P.2d 731 (1991) * %

State v. Johnston, 39 Ohio St.3d 48,

529 N.E.2d 898 (1988) Sones

State v. Armstrong, 110 Wis.2d 555,

329 N.W.2d 386 (1983) ae

Commonwealth v. Kater, 409 Mass. 433,

567 N.E.2d 885 (1991) a ae

Prime v. State, 767 P.2d 149 (Wyo. 1989)

State v. Glebock, 616 S.W.2d 897

(Tenn.Cr.App., 1981) ‘

State v. Brown, 337 N.W.2d 138

(N.D. 1983) 6 el gr

Zani v. State, 758 S.W.2d 233

(Tex.Cr.App. 1988)

State v. Hurd, 86 N.J. 525,

432 A.2d 86 (1981)

State v. Iwakiri, 682 P.2d 571

(Idaho 1984) “ert oe Uae

People v. Smrekar, 68 I11.App.3d 379,

24 Ill. Dec. 707, 385 N.E.2d 848 (1979)

State v. Greer, 609 S.W.2d 423

(Mo.Ct.App. 1980) ws

CONCLUSION .

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QUESTION PRESENTED FOR REVIEW

WHETHER THE KENTUCKY SUPREME COURT’S DECISION

FOLLOWS THE MAJORITY VIEWPOINT THAT A WITNESS

SHOULD NOT BE DISQUALIFIED FROM TESTIFYING ON THE

GROUND SHE WAS HYPNOTIZED BEFORE TRIAL AND HER

PRE- AND POST-HYPNOTIC STATEMENTS WERE THE SAME.

NO.

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1995

JOSEPH LEE ROWLAND PETITIONER

versus

COMMONWEALTH OF KENTUCKY RESPONDENT

ON PETITION FOR A WRIT OF CERTIORARI

TO THE KENTUCKY SUPREME COURT

RESPONDENT’S BRIEF IN OPPOSITION TO

PETITION FOR A WRIT OF CERTIORARI

OPINION BELOW

The opinions of the Kentucky Supreme Court and

the Kentucky Court of Appeals are correctly set

forth in slip form in petitioner’s Appendix and

Supplemental Appendix.

JURISDICTION

Petitioner has properly claimed jurisdiction

pursuant to 28 U.S.C. §1257(a). However,

respondent contests petitioner’s assertions that

this Court has jurisdiction pursuant to United

States Supreme Court Rule 10.1.

CONSTITUTIONAL PROVISIONS INVOLVED

Petitioner has properly listed the

constitutional provisions involved in this matter.

7 COUNTERSTATEMENT OF THE CASE

Petitioner entered a conditional guilty plea in

Grant Circuit Court to two counts of second degree

assault. He was sentenced to a total of 20 years

imprisonment. Pursuant to the conditional guilty

plea, petitioner appealed to the Kentucky Court of

Appeals. The Kentucky Const of Appeals affirmed

petitioner’s convictions. Petitioner thereafter

requested the Kentucky Supreme Court to grant

discretionary review of the decision of the Court

of Appeals. The Kentucky Supreme Court granted

discretionary review and affirmed the Court of

Appeals decision upholding petitioner’s

convictions.

Petitioner has now filed a petition for a writ

of certiorari to the Kentucky Supreme Court.

COUNTERSTATEMENT OF THE FACTS

Carol and Daniel Rowland were married in 1987.

Daniel had two children from a previous marriage:

petitioner, 15 years old in 1991 and Mark, 12 years

old. Carol had four children from a previous

marriage: Eddie Schardine, 16; Kathy Schardine, 13;

Billy Schardine 6; and Denny Schardine, 5. In

January, 1991, Carol, Daniel and the six children

were all living together.

On January 29, 1992, Carol and Daniel woke up

at 5:30 a.m. Around 5:40 a.m., Daniel left for

work. He kissed Carol good-bye and told her he

loved her. Carol then started getting the children

ready for school. She woke Kathy first. A few

minutes later she woke Mark and Joe and then Billy

and Denny. She let Eddie sleep because he was not

going to school that day.

Each morning Carol would drive the children to

the school bus stop. Petitioner’s morning chore

was to warm-up the car and scrape the frost from

the windows. On January 29, 1992, it was very cold

with a heavy frost. Carol looked out the window

about five minutes before time to leave for the bus

stop and noticed the car was running. She thought

it unusual petitioner did not have to be reminded

as usual to go start the car. She did not see

petitioner around the car.

Mark, Kathy, Billy and Denny went outside to

get in the car. Carol walked back in the house to

look for petitioner. She saw Eddie still sleeping.

She did not find petitioner. She walked back

outside and asked the other children if they had

seen him. They responded in the negative.

As Carol was standing on the porch she heard

the sound of a gunshot. She immediately felt as

though “somebody hit me in the back with a two by

four or something”. The other children came

running. She yelled for Mark to get the children

down to the ground. A second shot hit Carol in the.

back.

Carol turned toward where she had heard the

gunshot sound. She saw petitioner standing at the

edge of the house with a .38 pistol in his hand.

Carol could feel blood running out of her

chest. She was having difficulty breathing. The

first bullet had entered her back and exited her

chest. The second bullet lodged in her back.

Carol laid down on the ground.

Kathy ran to her mother. Petitioner fired a

third shot which struck Kathy in the back. Kathy

stumbled and crawled back to the house. The other

kids also ran into the house. They were screaming

and crying. Carol yelled at them to call the state

police. Carol lost a lot of blood and became

disoriented. She remembered being in an ambulance

and taken to a hospital.

As a result of her wounds, Carol suffered

permanent paralysis in her right side. As a result

of the shooting, Carol became depressed. She “was

freaking out about getting shot and my daughter

getting shot”. In April, 1991, her treating

physician referred her to Dr. Snider, a

psychiatrist. Dr. Snider diagnosed Carol as having

post-traumatic stress disorder’ and secondary

depression. Dr. Snider prescribed medication for

Carol’s depression and anxiety. He also referred

Carol to Dr. William Wester, a psychologist.

Dr. Wester interviewed Carol on September 30,

1991. Carol told Dr. Wester that after she was

shot the second time she turned around and “saw

[petitioner] turning and the light hit his eyes’.

She saw him “roll back around the front of that

house with the gun in his hand”. She said that in

the hospital she told her husband, “I think Joe

shot me”. She also related that two of the other

children witnessed petitioner shoot her and Kathy.

Dr. Wester agreed with Dr. Snider’s diagnosis

of Carol as secondary depression and post-traumatic

Post-traumatic stress disorder is a type of anxiety due to an overwhelming

psychological or physical trauma. It is characterized by re-experiencing

the traumatic event and avoiding situations which remind the person of the

event. One of the symptoms of post-traumatic stress disorder is the

inability to recall certain aspects surrounding the traumatic event.

6

stress disorder. Dr. Wester decided to place Carol

under hypnosis to enhance her memory. On October

16, 1991, Dr. Wester placed Carol under hypnosis.

Dr. Wester had Carol describe the events leading up

to the shooting and what she remembered about the

shooting. “Very little difference” existed in

Carol’s pre-hypnotic description and what she

described under hypnosis. Dr. Wester described

Carol’s hypnotic description as, “basically, just

more fine-tuned”. Dr. Wester felt the hypnosis was

helpful in “enhancing” some of Carol’s “fine

memories”.

Petitioner was indicted on two counts of first-

degree assault arising from his shooting Carol and

Kathy Rowland.

Petitioner moved to suppress Carol’s testimony

on the basis it had been hypnotically refreshed.

The trial court held a hearing on petitioner’s

motion. Dr. Wester and an expert on hypnosis

appointed to assist petitioner testified at the

hearing.

The trial court overruled petitioner’s

suppression motion. The trial court stated Carol

could testify and the jury then determine the

credibility and believability of her testimony as

it would do with any other witness. However, the

court ruled the Commonwealth would be precluded

from introducing the fact Carol was placed under

hypnosis, but stated petitioner could choose to

cross-examine Carol on this point. If petitioner

did choose to cross-examine Carol about the

hypnosis, the trial court stated it would then

allow the Commonwealth to introduce additional

testimony to explain hypnosis.

Carol testified at trial. After Carol’s direct

examination, petitioner notified the court he

wished to withdraw his not guilty plea and enter a

conditional guilty plea. The trial court accepted

petitioner’s guilty plea. Pursuant to the plea

agreement, the two first-degree assault charges

were amended to second-degree assault. He was

sentenced to ten years imprisonment on each count,

said sentences to run concurrent.

Pursuant to the conditional guilty plea,

petitioner appealed to the Kentucky Court of

Appeals. The Kentucky Court of Appeals affirmed

petitioner’s convictions. Petitioner thereafter

requested the Kentucky Supreme Court to grant

discretionary review of the decision of the Court

of Appeals. The Kentucky Supreme Court granted

discretionary review and affirmed the Court of

Appeals decision upholding petitioner’s

convictions.

Petitioner has now filed a petition for a writ

of certiorari to the Kentucky Supreme Court.

REASONS FOR DENYING THE WRIT

THE KENTUCKY SUPREME COURT’S DECISION

FOLLOWS THE MAJORITY VIEWPOINT THAT A

WITNESS SHOULD NOT BE DISQUALIFIED FROM

TESTIFYING ON THE GROUND SHE WAS

HYPNOTIZED BEFORE TRIAL AND HER PRE-

TRIAL AND POST-TRIAL HYPNOTIC

STATEMENTS WERE THE SAME.

In his petition for certiorari, petitioner

portrays that Carol Rowland’s identification of him

as her assailant came only after she was

hypnotized. Petitioner ignores the true state of

the evidence. In actuality, Carol adamantly

identified petitioner as her assailant before she

was hypnotized. In her pre-hypnosis statement,

Carol stated that after she was shot the second

time, she turned around and “saw [petitioner]

turning and the light his eyes.” She saw

petitioner “roll back around the front of the house

with the gun in his hand.” (Statement of Carol

Rowland, pp. 6, 13.) She said that while in the

hospital she told her husband, “I think Joe shot

me.” (Statement of Carol Rowland, p. 9.) She also

related that two of her other children saw

petitioner shoot her and her daughter. (Statement

“of Carol Rowland, pp. 10-11.) Contrary to

petitioner’s representations, this is not a case :

where hypnosis enabled a witness to remember

previously unknown facts. The only additional

facts Carol recalled during hypnosis were comments

. concerning seeing petitioner’s hair and jacket.

10

Petitioner bases his request for certiorari on

his claim that the Kentucky Supreme Court’s

decision is in conflict with the majority of other

jurisdictions. This is wholly inaccurate. The

overwhelming majority of states and federal

circuits have rejected a per se rule of

inadmissibility. By and large the courts require

the trial court to make a preliminary assessment of

admissibility, considering several factors

including adherence to procedural guidelines to

determine whether the proposed testimony is

reliable and its probative value outweighs its

prejudicial effect. If the evidence is then

admissible, it is treated as any other competent

evidence, with its weight and credibility to be

adjudged by the jury. Further, many of the

jurisdictions which originally excluded testimony

generated by hypnotically expanded memory have

modified their extreme positions in that a witness

may nevertheless testify with regard to those

matters which he or she was able to recall and

11

relate prior to hypnosis. As noted by the Virginia

appellate courts in Hall v. Commonwealth, 12 Va.

App. 198, 403 S.E.2d 362 (1991): |

We believe that the appropriate way to

resolve these competing interests is to

adopt the majority rule and permit a

witness who has undergone hypnosis to

testify as to those events recalled

prior to undergoing hypnosis so long as

this pre-hypnotic recall has been

adequately documented.

See also: Chamblee v. State, 527 So.2d 173

(Ala.Cr.App. 1988); People .v. Romero, 745 P.2d 1003

(Colo. 1987), cert. denied Romero v. Colorado, 485

U.S. 990, 99 L.Ed.2d 506, 108 S.Ct. 1296 (1988);

Creamer v. State, 232 Ga. 136, 205 S.E.2d 240

(1974); State v. Pierce, 263 S.C. 23, 207 S.E.2d

414 (1974); State v. Jorgenson, 8 Or.App. 1, 492

P.2d 312 (1971); Pearson v. State, Ind. 441 N.E.2d

468 (1982); House v. State, 445 So.2d 815 (Miss.

1984); State v. Varela, 112 N.M. 538, 817 P.2d 731

(1991); State v. Johnston, 39 Ohio St.3d 48, 529

N.E.2d 898 (1988); State v. Armstrong, 110 Wis.2d

555, 329 N.W.2d 386 (1983); Commonwealth v. Kater,

409 Mass. 433, 567 N.E.2d 885 (1991); Prime v.

12

State, 767 P.2d 149 (Wyo. 1989); State v. Glebock,

616 S.W.2d 897 (Tenn.Cr.App., 1981); State v.

Brown, 337 N.W.2d 138 (N.D. 1983); Zani v. State,

758 S.W.2d 233 (Tex.Cr.App. 1988); State v. Hurd,

86 N.J. 525, 432 A.2d 86 (1981); State v. Iwakiri,

682 P.2d 571 (Idaho 1984); People v. Smrekar, 68

I1l1.App.3d 379, 24 Ill. Dec. 707, 385 N.E.2d 848

(1979); State v. Greer, 609 S.W.2d 423 (Mo.Ct.App.

1980), vacated on other grounds Missouri v. Brown,

450 U.S. 1027, 101 S.Ct. 1735, 68 L.Ed.2d 222

(1981); Brown v. State, 426 So.2d 76

(Fla.Dist.Ct.App. lst Dist. 1983); State v. Martin,

33 Wash.App. 486, 656 P.2d 526 (1982); Hall v.

Commonwealth, 12 Va.App. 198, 403 S.E.2d 362

(1991); State ex rel. Neely v. Sherrill, 165 Ariz.

508, 799 P.2d 849 (1990); People v. Lee, 434 Mich.

59, 450 N.W.2d 883, cert. denied, 498 U.S. 879, 111

S.Ct. 211, 112 L.Ed.2d 171 (1990); Elliotte v.

State, 515 A.2d 677 (Del. 1986); State v. Moreno,

68 Haw. 233, 709 P.2d 103 (1985); State v. Collins,

296 Md. 670, 464 A.2d 1028 (1983); State v.

13

Koehler, 312 N.W.2d 108 (Minn. 1981); State v.

Patterson, 213 Neb. 686, 331 N.W.2d 500 (1983);

People v. Hughes, 59 N.Y¥.2d 523, 466 N.Y.S.2d 255,

453 N.E.2d 484 (1983); United States v. Awkward,

597 F.2d 667 (9th Cir. 1979) cert. denied, 444 U.S.

885, 100 S.Ct. 179, 62 L.Ed.2d 116 (1979);

Sprynczynatyk v. General Motors Corp., 771 F.2d

1112 (8th Cir. 1985); cert. denied, 475 U.S. 1046,

106 S.Ct. 1263, 89 L.Ed.2d 572 (1986); Beck v.

Norris, 801 F.2d 242 (6th Cir. 1986); Wicker v.

McCotter, 783 F.2d 487 (5th Cir. 1986) cert. denied

478 U.S. 1010, 106 S.Ct 3310, 92 L.Ed.2d 723;

McQueen v. Garrison, 814 F.2d 951 (4th Cir. 1987),

cert. denied 484 U.S. 944, 108 S.Ct. 332, 98

L.Ed.2d 359.

This Court’s decision in Rock v. Arkansas, 483

U.S. 44, 107 S.Ct. 2704, 97 L.Ed.2d 37 (1987)

supports the Kentucky courts’ decision to admit

Carol Rowland’s testimony. In Rock v. Arkansas,

this Court was faced with an Arkansas statute

prohibiting any defendant from testifying who had

14

previously been under hypnosis. This Court held

the statute violated a defendant’s constitutional

right to testify in his own behalf. This Court did

decline to specifically address the issue of

admissibility of testimony of previously hypnotized

witnesses other than criminal defendants. Fn. 15,

438 U.S. at 58, 107 S.Ct. At 2712, 97 L.Ed.2d at

50. However, after reviewing the literature and

the caselaw of the various jurisdictions pertaining

to hypnosis, this Court concluded:

Wholesale inadmissibility of a

defendant’s testimony is an arbitrary

restriction on the right to testify in

the absence of clear evidence by the

State repudiating the validity of all

posthypnotic recollections. The State

would be well within its powers if it

established guidelines to aid trial

courts in the evaluation of posthypnosis

testimony and it may be able to show

that testimony in a particular case is

so unreliable that exclusion is

justified. But it has not shown that

hypnotically enhanced testimony is

always so untrustworthy and so immune to

the traditional means of evaluating

credibility that it should disable a

Gefendant from presenting her version of

the events for which she is on trial.

15

483 U.S. at 61, 107 S.Ct. at 2714, 97 L.Ed.2d

at 52.

Thus, this Court found the utilization of

safeguards, corroboration and traditional means of

testing believability to be sufficient tests of

reliability to admit hypnotically refreshed

testimony. The Kentucky courts followed this route

in ruling the challenged testimony in the instant

case would be admissible. Before admitting the

challenged testimony, the trial court found:

1. Dr. Wester is an experienced and

trained psychologist and in fact is

board certified in clinical

hypnosis.

ae Dr. Wester is independent of the

Commonwealth of Kentucky in that he

is not regularly employed by the

Commonwealth, the Kentucky State

Police, or any entity thereof.

Ba An accurate summary exists of the

information Dr. Wester received

before the videotape of the

hypnosis began.

4. Dr. Wester obtained a description

of the events from Carol Rowland

before the hypnosis session began.

16

10.

il.

The sessions between Dr. Wester and

Carol were either audio or video

recorded.

Only Dr. Wester and Carol were

present during the sessions.

The hypnotic session was not overly

suggestive and was devoid of any

leading questions.

The probative value of Carol’s

testimony outweighs the prejudicial

effect of the fact she went through

a hypnotic session, especially in

light of the safeguards the trial

court was going to impose.

Other corroborating evidence

supports Carol Rowland’s testimony.

The trial court balanced the

relevancy, reliability and

helpfulness of the testimony

against the likelihood of any waste

of time, confusion and prejudice.

The procedure of examination and

cross-examination of Carol Rowland,

even though her memory was enhanced

by hypnosis will put the jury in

the same position as any other

witness who would testify.

As noted in both the Kentucky Court of Appeals and

Kentucky Supreme Court decisions, the trial court’s

extensive findings of fact corresponded to

safeguards utilized in other jurisdictions. See

17

e.g.: Elliotte v. State of Delaware, 515 A.2d 677

(Del. 1986) and People v. Tunstall, 63 N.Y.2d 1,

479 N.Y.S.2d 192, 468 N.E.2d 30 (N.Y¥.Ct.App 1984).

See also: State v. Hurd, 86 N.J. 525, 432 A.2d 86

(1981).

Appellant, therefore, is simply incorrect in

arguing the Kentucky Supreme Court’s decision is

out of step with other jurisdictions which have

addressed this issue. As such, no compelling

reasons exists for this Court to grant his petition

for writ of certiorari.

18

CONCLUSION

For the above-stated reasons, the respondent

respectfully submit” that the Petition for Writ of

Certiorari to the Kentucky Supreme Court should be

denied.

Respectfully submitted,

CHRIS GORMAN

ATTORNEY GENERAL

Th L. HARNED

ASSISTANT ATTORNEY GENERAL

CRIMINAL APPELLATE DIVISION

OFFICE OF THE ATTORNEY GENERAL

P.O. BOX 2000

FRANKFORT, KENTUCKY 40602-2000

COUNSEL FOR RESPONDENT

19